What is a woman? Courts and sports figure it out
Common sense is gradually returning to the public sphere
The International Olympic Committee (IOC) ceased sex-testing of female Olympic athletes in 1999 because of the intrusive, embarrassing, and sometimes traumatic nature of the tests. Instead, it deferred to the international sport governing bodies (IGBs) to determine female eligibility resulting in a patchwork of different standards and varying degrees of expertise in their application. Also, lacking any substantive definition of competition categories, IGBs have become bound by social and legal arguments about what constitutes a woman.
Over the past 25 years, IGBs have encountered challenges in determining the eligibility of athletes with sex development disorders (DSDs) and transgender women to compete in the women’s category. These concerns have raised questions about fairness and safety. The inconsistent and, at times, insensitive approaches taken by individual organizations to address these issues have led to unsatisfactory outcomes. The IOC could have established common-sense rules for determining female eligibility, but they failed to do so. Consequently, IGBs are now relying on the legal community for guidance on an issue that has gained significant social importance beyond the realm of sports.
DSD issues are particularly challenging because some athletes remain unaware they have a condition that falls under the DSD category. The lead-up to a major competition like the Olympics is not an appropriate time for an athlete to discover that their sex-eligibility is in question. The case of Caster Semenya, a South African female runner, is a good example. Semenya has a confirmed DSD type characterized by naturally high testosterone levels, similar to those found in males. How many other athletes are in a similar situation? We don't know because there is no standardized testing method, and when it is conducted, it may be discriminatory or motivated by spite.
Furthermore, it is evident that if IGBs are to establish a female category of competition, there must be a mechanism for gatekeeping to determine eligibility. By definition, this category should be limited to females and, therefore, exclusionary, excluding transgender women.
The changing legal environment
One reason why many IGBs and some national sport governing bodies (NGBs) have been hesitant to establish an exclusionary women’s category is the fear of potential legal repercussions. However, this fear is gradually fading as the legal framework in certain countries shifts towards a more traditional understanding of why sport competition has male and female categories, and legal definitions of what constitutes a woman are being adopted. Common sense is gradually returning to the public sphere.
Just days after his inauguration, Donald Trump issued an Executive Order banning transgender women from competing in women’s sports in the United States. Less than a day later, the NCAA changed its policy to align with the order, claiming that they were adjusting their policy to comply with the new legal guidance on the matter. It’s worth recalling that the NCAA is the organization responsible for arguably the most egregious example of transgender silliness when a male swimmer was permitted to compete in and win an event at the NCAA women’s championship in 2022.
Mr. Trump also stated that he expects that women's sport events in the 2028 Olympic Games in Los Angeles will be exclusively for women. While skeptics may question how a United States Executive Order impacts IOC policy and procedure, it’s important to note that while the order may not be directly enforceable against an IGB in an international event, when considered in conjunction with other legal trends its indirect influence becomes significant, particularly since the event is held within the United States.
For instance, a recent ruling by the Supreme Court of the United Kingdom clarified the legal definition of a woman under the Equality Act of 2010. The court ruled that the terms “woman” and “sex” in the Act refer to biological women and biological sex, and do not include transgender women. This ruling has a straightforward impact on sports: If an organization conducts competition with categories for men and women, the eligibility for those categories will be determined by an athlete’s biological sex. The ruling provides the following clarification:
Sport is a gender-affected activity. It depends on the determination of whether the strength, stamina, or physique of average persons of one sex would put them at a disadvantage as competitors in a particular sport when compared to average persons of the other sex. U.K. Supreme Court judgement
It’s only a matter of time before a similar case is argued before the Supreme Court of the United States, which will almost certainly reach a similar conclusion as in the United Kingdom.
In 2024, United Nations Special Rapporteur Reem Alsalem advocated for the reinstatement of sex screening in sports. She noted that advancements have enhanced reliability of such testing, making it possible to administer it in a confidential and respectful manner.
“In order to ensure, fairness, dignity and safety for all, including females – women and girls, females – we would need to maintain a female-only category in sports, while at the same time also having more ‘open’ categories for those wishing to play sports in categories that do not respond to the sex they were born into … Current technology enables a reliable sex screening procedure through a simple cheek swab that ensures non-invasiveness, confidentiality and dignity.” Sports Examiner, 8 October 2024
Indeed, World Athletics is planning to introduce a screening process that will be conducted only once in an athlete’s career. This screening will serve as a pre-clearance requirement for participation in the female category. Sebastian Coe, the president of World Athletics, emphasized the importance of maintaining fairness by allowing only biological female athletes to compete in the female category.
World Athletics will employ a test called SRY screening. This test analyzes DNA extracted from a cheek swab to determine the presence of the SRY gene on the Y chromosome. If the gene is absent, the athlete is female, and no further testing is necessary. Conversely, the presence of the gene indicates male gender, but it can also be a sign of several DSDs. Consequently, the presence of the SRY gene necessitates more comprehensive testing to obtain a definitive result.
The SRY screen, as an exclusionary gatekeeper, would be administered to all athletes participating in the female category. As mentioned earlier, this screening process would be conducted once in an athlete’s career, and the results would be permanently recorded with their sport’s NGB. This aligns with the most critical step in establishing a female category in sports: Defining the eligibility criteria to ensure competitive fairness and integrity within the category.
Could the SRY screen be used in all sports? Yes, but the best solution would be for the IOC to adopt it as its own screening process rather than leaving it up to individual IGBs.
IGBs have also revised their rules on transgender participation in the female category. This change came after somewhat of a free-for-all of self-identification leading to unfair outcomes and safety concerns. In some IGBs, transgender women are now required to demonstrate that they haven’t experienced male puberty to compete in the female category. This effectively excludes transgender women from the female category without explicitly stating so. However, it doesn’t address the disconnect from common sense when it comes to younger athletes who haven’t reached puberty. In some sports, self-identification is still the norm at young ages. Since sport is a sex-affected activity, it makes sense that eligibility rules should apply to all ages and not require transgender athletes to make category shifts once they reach a certain age. Implementing a universal screening process to determine eligibility for the female category would standardize sport competition globally.
The evolving legal landscape is gradually empowering sport administrators to adopt sensible eligibility rules for women. What appeared to be a dire situation just a few years ago is now on track to ensuring fair and safe competitive experiences for women.